Is There Logic to Russia’s Wrongful Detentions of Americans?
This commentary was originally published in The Hill on April 11, 2023.
We can hate the idea that Americans are being taken hostage by foreign governments—a special category of hostage-taking called “wrongful detention”—though this practice is likely to continue until we find the right means of disincentivizing such behavior. But any policy to disincentivize other nations should not be done to the detriment of Americans who are arrested abroad purely for political reasons.
The countries that engage in wrongful detentions do not care much about being repudiated from the majority bloc of nations that adhere to the rule of law, so admonishment does little to affect their calculus. The group of nations is admittedly small, including China, Iran, North Korea, Russia, Syria, and Venezuela. A July 2022 executive order called on the State Department to name and shame these countries in its travel alerts, but also called for actions to hold individuals accountable for participating in them.
The high-profile arrest of WNBA athlete Brittney Griner did wonders to raise awareness of the practice of wrongful detentions for many Americans. But the fact is, Americans travel for numerous reasons to safe places and not-so-safe places. Curtailing travel to certain locations can be the right move, but it can deprive Americans of awareness of the world, our businesses of economic opportunities, and journalists of the ability to make the world aware of the reality on the ground during war, political turmoil and natural disaster.
While risky behavior overseas certainly can increase the chances of an arrest, the opposite is not always true. If a foreign government wants an American visitor in custody, they will find or create a basis for making the arrest. I have watched as American families anguish over the developments each day of their loved ones’ trials, wanting to mortgage their homes to get the best lawyers, but at the same time knowing the outcomes are predetermined. The trial is just a veneer that the foreign government uses to argue it is a rule-of-law-based society.
The foreign government may seem as though it is acting erratically but there often is a logic to their misbehavior. It may sound counterintuitive but, in wrongful detention cases, this can provide an advantage. These cases always start by considering what the foreign government wants and why what it seeks is important to them. Not every case is solved with a prisoner exchange. Sometimes the foreign government seeks a policy change, the removal of sanctions, the release of encumbered assets and, yes, sometimes it is the release of someone in U.S. custody. Sometimes the foreign government just wants the United States to pay attention to them.
In Russia, three Americans were designated as wrongful detainees in the past few years. In order, Paul Whelan, Trevor Reed, and Brittney Griner were all arrested—Whelan on alleged espionage charges, Reed for allegedly assaulting a Russian police officer, and Griner for drug possession. Reed was released in 2022 in exchange for Konstantin Yaroshenko, a convicted drug smuggler. There was then substantial outcry when Griner was released later in 2022, despite being arrested long after Whelan. The White House response to questions about this was that Griner’s release was the only deal on the table—and that makes sense in a certain way.
The Russians are seeking to use this despicable tactic while simultaneously arguing that they are a rules-based society. So trading Reed made sense when the other side of the deal was someone of a comparable category (neither assault nor drug trafficking are espionage-related). Griner was released in exchange for arms dealer Viktor Bout, who was serving time in U.S. custody on arms trafficking charges. What is important is that Bout was not in prison for intelligence activities, despite suspicion that his trafficking was a proxy for Russian government policy objectives. So the Reed and Griner releases were based on trades that, to the Russians, were for someone of a comparable category to their own charges.
That leaves Whelan, waiting for the right deal to bring him home. Using the above equation, it is most likely that the Russians are seeking the release of a Russian in U.S. custody—or who the United States can help bring to the table—who is being held on espionage-related charges. This could be a one-for-one trade or a group trade for several people. The recent arrest of Wall Street Journal reporter Evan Gershkovich on espionage charges could be their effort to set up that dynamic. There is an argument to be made that the Russians initially wanted Bout and took Whelan to make the trade, but then escalated to Reed when the original deal was not forthcoming from the U.S. side.
NBC News reported on March 31 that numerous Russian intelligence officers had been either arrested or expelled from countries around the world in recent months. One of them was Sergey Cherkasov, a Russian intelligence officer living under an assumed identity in Brazil, who sought to embed himself in Washington’s policy and national security circles. Cherkasov was denied entry to Amsterdam and then arrested in Brazil, purportedly with the intervention of U.S. intelligence.
If the Russians want to pretend they are operating within the rule of law, and that the charges against Gershkovich are true, then he will be convicted and sentenced. That does not mean he is guilty of anything other than being an American passport holder. His role as a journalist working in a country that targets journalists for arrest—and worse—is only part of the equation that positioned him as the victim this time. But the arrest, charges, trial, and any conviction are all just elements of the Russian process.
Gershkovich should think carefully before appealing his almost certain conviction. When Griner was sentenced to nine years in August 2022, she appealed the sentence. It could be argued that the active appeal prolonged her detention until it was denied in October. This allowed the Russians to take the position that their judicial system had run its course and opened the door for the early December trade by the Ministry of Foreign Affairs. While unquestionably more equitable and transparent, the U.S. system is not unlike the Russians in this regard; the Department of Justice routinely rejects any support for prisoner trades and only relents once their process is complete and at the direction of the White House.
Work can and should be underway to understand Russian thinking on this issue, including the basis for the arrest of Gershkovich and the formula that will bring him and Whelan back home. This does not need to take years, but the Russian process is probably going to have to work its way through before they are open to taking action on whatever deal is eventually arranged.
Eric Lebson currently works for Camden Advisory Group. He previously served as a director at the National Security Council, working on Afghanistan and Pakistan from 2009–2011. He advocates for the families of American hostages and wrongful detainees held abroad.